Full Senate to take up e-mail privacy

By Adam Mazmanian

Apr 25, 2013

Privacy laws written when e-mail was new could get an upgrade. (Stock image)

E-mail privacy laws a quarter-century old may get a refresh designed to put all e-mail communications on the same legal footing. The Senate Judiciary Committee on April 25 unanimously reported out a bill updating the Electronic Communications Privacy Act for consideration by the full Senate.

The bill would change the tangled morass of rules governing access to e-mail by law enforcement that were instituted in 1986, when e-mail was still something of a novelty. At present, e-mails downloaded from a server and stored on a hard drive enjoy more protection than e-mails stored in a cloud service. E-mails that are more than six months old can be obtained via a subpoena, while more recent communications require a warrant. Adding to the confusion, a federal appeals court has ruled that a key provision in ECPA is unconstitutional, creating an uneven application of the law across federal jurisdictions.

Sen. Mike Lee (R-Utah), a cosponsor of the bill, said in Thursday's hearing that, "Updating ECPA in the manner we've proposed is essential to protecting the Fourth Amendment Rights of American citizens."

A modified ECPA likely wouldn't have much of a direct impact on agency networks. Users of U.S. government information systems don't have an expectation of privacy, and are subject to real-time monitoring -- conditions that are spelled out on banners users see when logging on.

The changes would, if passed into law, provide new clarity for operators of cloud services as varied as social networks, data storage providers, and e-mail services. A broad coalition of privacy activists, trade groups and technology companies from Adobe to Yahoo indicated their strong support for the measure in an April 22 letter to the Judiciary committee, seeking "stronger protection to sensitive personal and proprietary communications stored in 'the cloud'."

Some members still have concerns about the bill. Sen. Jeff Sessions (R-Ala.) is looking to strengthen provisions that would allow law enforcement to get around the warrant requirement in the event of an emergency. Sen. Dianne Feinstein (D-Calif.) is looking to make sure that the warrant requirement does not give alleged offenders the chance to delete an online trail of evidence. And an amendment proposed by Sen. Charles Grassley (R-Iowa) would charge the Government Accountability Office with reviewing the impact of the new requirements on law enforcement in a report to Congress.

About the Author

Adam Mazmanian is executive editor of FCW.

Before joining the editing team, Mazmanian was an FCW staff writer covering Congress, government-wide technology policy, health IT and the Department of Veterans Affairs. Prior to joining FCW, Mr. Mazmanian was technology correspondent for National Journal and served in a variety of editorial at B2B news service SmartBrief. Mazmanian started his career as an arts reporter and critic, and has contributed reviews and articles to the Washington Post, the Washington City Paper, Newsday, Architect magazine, and other publications. He was an editorial assistant and staff writer at the now-defunct New York Press and arts editor at the About.com online network in the 1990s, and was a weekly contributor of music and film reviews to the Washington Times from 2007 to 2014.